TIMOTHY APPLEBY
The Globe and Mail
Friday, February 25, 2000

When is homicide a crime -- a culpable offence? Far more often than not, any survey of sudden deaths will show.

But not always. The death of 10-year-old Lisa Shore at Toronto's Hospital for Sick Children was a homicide, an inquest concluded yesterday. In simplest terms, that means the child died as a result of someone else's actions.

That is not to imply that anyone is at fault. Neither does it necessarily mean anyone is not at fault.

The mandate of a coroner's jury is to establish how, where and when the person died. Usually, the findings will also offer an explanation as to why the death occurred.

What the jury may not do, however, is assign blame. That's for a criminal investigation to establish, if there is one. And for a crime to take place, there must be intent.

When nurse Susan Nelles was charged in 1981 with a string of children's deaths at the same hospital -- to be vindicated when the Crown's case against her fell apart -- it was because police concluded, wrongly, she had intended to commit murder.

But for intent to be present, it doesn't necessarily mean the accused person intended his actions to turn out the way they did.

The drunk driver who kills a pedestrian, for instance, usually has no intention of killing anyone. What he did have, however, was the intent to get in his car and drive it, while knowing he was impaired.

Thus, while murder charges are not unheard of among impaired drivers who kill, charges of criminal negligence causing death or manslaughter are much more common.

In Canada, murder is classified as either first or second degree. Usually, first-degree murder implies the killing was planned in advance, although other circumstances can apply, such as murder during a sexual assault.

Second-degree murder, a more common charge, generally means the killer intended to kill, but did so in the heat of the moment. The barroom brawl where someone suddenly pulls a knife and stabs his foe, for example, typically results in a charge of second-degree murder.

If no weapons are used in that same barroom brawl, but death results because one combatant slips and cracks his skull on the floor, a manslaughter charge is likely.

Murder, manslaughter, criminal negligence causing death -- all represent different degrees of culpable homicide.

But there is also such a thing as non-culpable homicide, broadly meaning that one person caused the death of another but was blameless -- there was no abuse, no neglect, no other crime of any kind.

This is rare, but it occurs. An example might involve the inadvertent poisoning of a guest at a dinner party who fails to tell the host she has potentially fatal allergies.

Or perhaps a window is accidentally left open in an elderly patient's hospital room, and the patient develops pneumonia and dies.

Unless some previous pattern can be shown, it would be hard to argue in either case that criminal intent of any kind was involved.

And without that intent, there is no culpability.